( 1 ) BEING aggrieved by the order passed the learned XXIII Addl. City Civil and Sessions Judge in Crl. R. P. No. 37/98 confirming the order passed by the learned Metropolitan Magistrate, Traffic Court-I, Bangalore in C. C. No. 24934/97 dismissing the application filed by the petitioner under S. 251, Cr. P. C. to stop further proceedings by discharging the accused, the petitioner has filed this petition under S. 482, Cr. P. C.

( 2 ) THE learned counsel for the petitioner submitted that if the entire case of the prosecution is taken as a whole no case is made out as against this petitioner; that the doctor's certificate only shows that he had consumed alcohol but not intoxicated and as such the impugned order is liable to be set aside.

( 3 ) HOWEVER, the learned SPP vehemently argued that the case is set down for recording the evidence and the quantity of alcohol consumed by the petitioner will have to be spoken to by the doctor who examined him as per the requisition of the police and therefore the impugned order does not call for interference.

( 4 ) THE brief facts of the case are that the Circle Inspector of Police attached to Traffic Zone booked a case against this petitioner on the allegation that on 29-11-1997 at about 10. 15 p. m. the petitioner was riding the scooter under the influence of drinking and thereby he has committed an offence punishable under Sec. 185 of the Motor Vehicles Act, 1988 as amended in 1994. The petitioner was subjected to medical examination on the very night and the doctor has certified that the petitioner was found having consumed alcohol but not intoxicated. However, the charge sheet was filed against the petitioner. 4a. Section 185 of the Motor Vehicles Act 1988 reads as follows :- 185. Driving by a drunker person or by a person under the influence of drugs :- Whoever, while driving, or attempting to drive, a motor vehicle,- (a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or (b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.

( 5 ) THUS, from a reading of this section, it is abundantly clear that it is the duty of the prosecution to prove that the blood of the petitioner contained alcohol exceeding 30 m. g. per 100 m. l. of blood detected in a test by breath analyser. There is nothing to indicate that alcohol exceeding 30 mg per 100 ml of blood was detected in the blood and the breath analyser test was conducted. The doctor also clearly stated that he had consumed alcohol but he was not intoxicated. Mere taking alcohol is not sufficient. The consumption of alcohol is not sufficient. The consumption of alcohol must be exceeding 30 mg per 100 ml of blood. No test in regard to detecting this. But from the reading of sub-sec. (1) of Sec. 185 of M. V. Act, it is clear that the intendment of the legislature is that the person is prohibited from driving the vehicle if the alcohol consumed by him exceeds 30 mg per 100 ml of blood and not consuming alcohol below the prescribed limit. In this case, the doctor has not given the quantity of alcohol found in the blood of the petitioner. The Investigating Officer after receipt of the medical report did not seek clarification from the doctor to furnish all the details as required under Sec. 185 of the M. V. Act. Such being the position, even if the doctor is examined, no useful purpose would be served. On the other hand, it would be a futile attempt on the part of the prosecution to lead evidence in this case.

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